[Senate Hearing 111-529]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 111-529
 
   ADVANCING FREEDOM OF INFORMATION IN THE NEW ERA OF RESPONSIBILITY 

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 30, 2009

                               __________

                          Serial No. J-111-50

                               __________

         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel


















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, John, a U.S. Senator from the State of Texas.............     3
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................    56
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    65

                               WITNESSES

Curley, Tom, President and Chief Executive Officer, The 
  Associated Press, Representing the Sunshine in Government 
  Initiative, New York, New York.................................    14
Fuchs, Meredith, General Counsel, The National Security Archive, 
  Washington, DC.................................................    16
Nisbet, Miriam, Director, Office of Government Information 
  Services, National Archives and Records Administration, College 
  Park, Maryland.................................................     6
Perrelli, Thomas J., Associate Attorney General, U.S. Department 
  of Justice, Washington, DC.....................................     4

                         QUESTIONS AND ANSWERS

Responses of Thomas J. Perrelli to questions submitted by Senator 
  Leahy..........................................................    22

                       SUBMISSIONS FOR THE RECORD

Associated Press, Laurie Kellman, Washington, DC, article........    24
Burton, M. Faith, Acting Assistant Attorney General, Washington, 
  DC, letter and attachment......................................    26
Curley, Tom, President and Chief Executive Officer, The 
  Associated Press, Representing the Sunshine in Government 
  Initiative, New York, New York, statement......................    32
Fuchs, Meredith, General Counsel, The National Security Archive, 
  Washington, DC, statement......................................    58
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  letter.........................................................    67
Nisbet, Miriam, Director, Office of Government Information 
  Services, National Archives and Records Administration, College 
  Park, Maryland, statement......................................    69
OpenTheGovernment.org; Organizations and Individuals, Washington, 
  DC, letter.....................................................    71
Perrelli, Thomas J., Associate Attorney General, U.S. Department 
  of Justice, Washington, DC, statement..........................    75


   ADVANCING FREEDOM OF INFORMATION IN THE NEW ERA OF RESPONSIBILITY

                              ----------                              


                     WEDNESDAY, SEPTEMBER 30, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Whitehouse, Klobuchar, Franken, 
and Cornyn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. I was just explaining to Senator Cornyn, 
who has been such a champion in this area, the reason why I am 
late. Over in the Russell Building, they were changing the 
Chair of the Senate Agriculture Committee. For the first time, 
there will be a woman as Chair of the Committee, Blanche 
Lincoln of Arkansas, and the first time an Arkansan will be 
Chair. But it is a Committee which thrives on bipartisanship, 
and all the former Chairs of that Committee who are currently 
serving in the Senate were there--that is, Senator Saxby 
Chambliss of Georgia, Senator Dick Lugar of Indiana, Senator 
Thad Cochran of Mississippi, all Republicans; and Senator Tom 
Harkin and myself, Tom Harkin of Iowa and myself. So we had six 
people there, one Chair, five former Chairs, and we have all--
to show you how the majority goes back and forth here, all five 
of us have been former Chairs and former Ranking Minority 
members. So it is one of those things that they keep track of. 
I suspect it is somewhat of an oddity in the Senate and 
somewhat historical.
    But more importantly for this Committee, we are holding an 
important oversight hearing on the Freedom of Information Act, 
or ``FOIA,'' as we all know it. FOIA was enacted 42 years ago. 
It was enacted 7 years before I came to the Senate. It was a 
watershed moment in our Nation's history because it guarantees 
the right of all Americans to obtain information from their 
Government and to know what their Government is doing. 
Remember, it is our Government, all of us.
    In his historic Presidential memorandum on FOIA, President 
Obama said that ``[i]n our democracy, the Freedom of 
Information Act, which encourages accountability through 
transparency, is the most prominent expression of a profound 
national commitment to ensuring an open Government. At the 
heart of that commitment is the idea that accountability is in 
the interest of the Government and the citizenry alike.''
    I know from the start of his transition to the White House, 
I urged him to make a clear commitment to FOIA, and I told him 
I was very pleased that one of his first official acts was to 
issue the new directive to strengthen FOIA. But I would also 
note that he supported every time Senator Cornyn and I made 
moves to strengthen FOIA, he as a Senator had backed that.
    FOIA is an indispensable tool in protecting the people's 
right to know. It is a cornerstone of our democracy. If you do 
not have it, you are kept in the dark about key policy 
decisions. The Government will always tell us look at the great 
thing we did right. FOIA kind of helps find out those things we 
do not want to talk about that we did wrong. And without open 
Government, you cannot make informed choices at the ballot box. 
Without access to public documents and a vibrant free press 
using those, officials can make decisions in the shadows, often 
in collusion with special interests, escaping accountability 
for their actions. And once eroded, the right to know is hard 
to win back.
    It is essential that we honor the President's promise to 
restore more openness and accountability to Government. I have 
called on the Justice Department to conduct a comprehensive 
review of its pending FOIA cases so that information sought 
under FOIA is not improperly withheld from the public. In 
March, the Attorney General issued new FOIA guidance that 
restores the presumption of disclosure for Government 
information. I welcome that new policy, and I am pleased that 
the Associate Attorney General is here to discuss how the FOIA 
guidelines are being implemented. Mr. Perrelli, I am delighted 
you are here.
    We have made good progress toward strengthening FOIA in 
Congress. Earlier this year, the Congress enacted an omnibus 
spending bill that includes critical funding to finally 
establish the Office of Government Information Services at the 
National Archives and Records Administration as part of the 
OPEN Government Act, which Senator Cornyn and I wrote.
    Incidentally, speaking of that, both of us realize the 
temptation to withhold things can afflict both Democratic and 
Republican administrations. We were trying to write this so no 
matter who is President, no matter which party is in control, 
that the temptation can be resisted because FOIA is strong. And 
so we are going to--there is a lot more I will put in the 
record. I would note that I have worked with Senator Feinstein, 
the Chair of the Select Committee on Intelligence, to remove an 
unnecessary FOIA exemption from the intelligence 
reauthorization bill. Senator Cornyn and I have also 
reintroduced the OPEN FOIA Act.
    I want to yield to Senator Cornyn, and I will ask that my 
full statement be made part of the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Leahy. Senator Cornyn.

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 
                             TEXAS

    Senator Cornyn. Well, thank you, Mr. Chairman, and I want 
to thank all the witnesses for being here today for this 
important hearing. I am sad because my responsibilities down 
the hall at the Finance Committee with health care reform are 
going to take me away from here, so I will not be able to 
participate fully. But please know that is not for lack of 
interest. I am absolutely committed to the cause of open 
Government and freedom of information. And I am hoping, Mr. 
Chairman, that you and I can continue to work together as 
partners to advance this cause in the future as we have been 
fortunate to do in the past.
    I know sometimes people get the impression that in 
Washington nothing gets done on a bipartisan basis. But that is 
just not true, and I think the work that the Chairman and I 
have done in this area is a good example of that. And I would 
note, since our friend Senator Whitehouse is here, that I was 
proud to cosponsor with him the Justice Reinvestment Act 
legislation.
    So I think hope springs eternal for bipartisan cooperation. 
Even though we may fight like cats and dogs on some issues, 
when we find common cause, we can do some very good things.
    The OPEN Government Act of 2007 was an attempt to restore 
meaningful deadlines with real consequences to the freedom of 
information system and, thus, to ensure that Government 
agencies will provide timely responses to requests. Our bill 
created a new system for tracking pending requests and an 
ombudsman to review agency compliance.
    My experience, Mr. Chairman, when I was Attorney General of 
Texas and had responsibility for enforcing the Open Meetings 
and Open Records Act, was that a lot of time people did not 
know how to navigate Government when they wanted information, 
and so the ombudsman function served as a good way to avoid 
litigation, to avoid misunderstandings, and just get to the 
heart of the matter and find out what people are asking for and 
get them what they want without delay and without hassle. I am 
glad we are going to be able to do that at the Federal level.
    Today's hearing provides the opportunity to examine whether 
the key provisions of the OPEN Government Act are being 
properly implemented and how effective they are. I hope our 
witnesses will offer suggestions for further improvements to 
the Freedom of Information Act and enforcement to build on the 
reforms that we have already passed. I am sure you have some 
ideas.
    Finally, I would like to speak directly to our first panel 
of witnesses, Mr. Perrelli and Ms. Nisbet, who appear today on 
behalf of the Federal Government. As I noted, the OPEN 
Government Act was the latest attempt to improve the 
Government's response time to citizens' requests for 
information and the thoroughness of those responses. But 
tightening deadlines and imposing consequences can only take us 
so far.
    My view is that what is most critical is a change in the 
ethic and the culture of the Federal Government when it comes 
to our citizens and their requests for information, which is 
not the Government's. It is theirs. Citizens requesting 
information should be treated as valued customers, not as 
adversaries, and certainly not as a nuisance. They should be 
engaged and assisted and not avoided. And that is why, again, I 
hope the ombudsman function will help in that regard.
    Ms. Nisbet, the Office of Government Information Services 
was created in part to change that ethic and to change the 
culture and to transform every corner of the Federal 
bureaucracy. This is a tall order, but one that I believe you 
are well suited to lead. I stand ready to work with you to help 
bring this critical change of attitude, ethic, and culture 
about.
    And, Mr. Chairman, thank you again for continuing our 
partnership. I look forward to more good work in the interests 
of open Government, transparency, and accountability. Thank 
you.
    Chairman Leahy. Thank you very much.
    Our first witness is Thomas J. Perrelli who currently 
serves as the Associate Attorney General at the U.S. Department 
of Justice. Before that, he was the managing partner of the 
Washington, D.C., office of Jenner and Block.
    Incidentally, while Senator Cornyn is leaving, I would note 
that half of our Committee is back in Finance doing health 
care.
    When Mr. Perrelli was at Jenner and Block, he co-chaired 
the firm's new media and entertainment practices. Prior 
Government experience includes service as counsel to former 
Attorney General Janet Reno, Deputy Assistant Attorney General 
in the Civil Division during the Clinton administration; a 
graduate of Brown University and Harvard Law School.
    Mr. Perrelli, glad to have you here, sir.

 STATEMENT OF THOMAS J. PERRELLI, ASSOCIATE ATTORNEY GENERAL, 
          U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Perrelli. Thank you, Mr. Chairman. Good morning.
    As you indicated, my name is Tom Perrelli. I am the 
Associate Attorney General and also the chief FOIA officer for 
the Department of Justice. I would first like to thank the 
Chairman, the Ranking Member, and the rest of the Committee for 
bringing attention to the important issue of our implementation 
of the Freedom of Information Act. I know it has been a long-
time issue on which you have focused, Mr. Chairman, and your 
leadership has really been to the benefit of the country. And I 
appreciate also the leadership of Senator Cornyn on this issue.
    As you know, President Obama has pledged to make his the 
most open and transparent administration in history. The 
administration's efforts started on his first full day in 
office, when he issued important memoranda that called on his 
agencies to initiate a new era of open Government. The premise 
is simple. Openness will strengthen our democracy and promote 
efficiency and effectiveness in Government.
    Since that time, Federal agencies across the Government 
have been working to promote openness in a variety of ways, but 
we at the Department of Justice take particular responsibility 
for implementing the President's directive with respect to 
FOIA. I have described a number of initiatives in my written 
testimony, and I would be pleased to talk about those further, 
but at least I would like to highlight three.
    First and foremost is Attorney General Holder's March 19 
memo to the heads of all Federal agencies. Those guidelines 
advise agencies that we are taking a new approach to the 
disclosure of information and trying to implement, I think, 
really as Senator Cornyn suggested, a new culture in 
approaching the FOIA.
    In addition to strongly encouraging agencies to make 
discretionary releases of records, the Attorney General has 
made clear that records should not be held simply because a 
FOIA exemption may apply, to prevent embarrassment, or because 
of speculative or abstract fears. Rather, the Attorney General 
has made clear that the Department of Justice will defend a 
denial of a FOIA request only if the agency reasonably foresees 
that disclosure would harm an interest protected by one of the 
statutory exemptions, or the disclosure is prohibited by law. 
And we and our agency partners are implementing those 
guidelines every day.
    The second thing I will point to briefly is the latest 
edition of our Department of Justice Guide to FOIA, published 
this year in sunshine yellow, and that is a lot of FOIA for 
those who can see the size of the book. It is an indispensable 
resource and really the definitive manual on FOIA. And that is 
used by Federal agencies across the country and in the 
requester community. And having been both a requester and 
within Government, the FOIA manual has always been of critical 
help.
    Finally, I am also pleased to announce this morning that 
the Department is issuing updated guidance to the chief FOIA 
officers. Under the FOIA, the Attorney General is to direct 
agency chief FOIA officers to report on their agencies' 
performance under the FOIA. This morning we are issuing 
guidance that will continue our efforts to promote openness in 
Government. The new guidance goes beyond the legal requirements 
of the OPEN Government Act and requires each agency to talk 
about the steps being taken at their agency to apply the 
presumption of disclosure as well as to track several different 
measures related to processing backlogs, reliance on certain 
statutes for Exemption 3, as well as their efforts to implement 
new technologies. We think that reporting will help encourage 
agencies to improve their administration of FOIA.
    Finally, I should note that we at the Department of Justice 
are particularly pleased to be testifying with Miriam Nisbet, 
welcoming the Office of Government Information Services--OGIS--
to the Federal FOIA family, and we are looking forward to 
working with OGIS and to benefiting the citizens who seek 
information about how their Government works.
    Thank you, Mr. Chairman, and I would be pleased to answer 
any questions that you or other members have.
    [The prepared statement of Mr. Perrelli appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Mr. Perrelli.
    Before we go to the questions, in my longer statement in 
the record, I mentioned Ms. Nisbet and how happy I am she is 
here. She currently serves as the newly appointed Director of 
the Office of Government Information Services, or OGIS, at the 
National Archives and Records Administration, an office I have 
pushed very hard to get established, and I cannot think of 
anybody better to serve there as head of it. Before she assumed 
this post, she served as the Director of the Information 
Society Division for the United Nations Educational, 
Scientific, and Cultural Organization--we know it as UNESCO--in 
Paris. Her extensive information policy experience includes 
previous work as a legislative counsel for the American Library 
Association, Deputy Director of the Office of Information 
Policy for the Department of Justice. She earned her bachelor's 
degree and her law degree from the University of North 
Carolina.
    Bievenue. Go ahead.

  STATEMENT OF MIRIAM NISBET, DIRECTOR, OFFICE OF GOVERNMENT 
      INFORMATION SERVICES, NATIONAL ARCHIVES AND RECORDS 
             ADMINISTRATION, COLLEGE PARK, MARYLAND

    Ms. Nisbet. Merci. I am pleased to appear before you today. 
This Committee was instrumental in establishing the Office of 
Government Information Services through the Open Government Act 
of 2007, which amended the Freedom of Information Act. Thank 
you in particular, Mr. Chairman, and thanks to Mr. Cornyn, for 
your vision and your perseverance in making this new office one 
of the levers for reinvigorating our country's FOIA.
    The concept of the public's right to access to the records 
of its Government is fundamental to our democracy. Mr. 
Chairman, you have articulated that beautifully in your opening 
statement. Yet making our Freedom of Information Act work 
smoothly and efficiently to accommodate that concept has proved 
more difficult and costly than we could have imagined. This 
Committee has continued to make improvements in the law over 
several decades--delicately balancing the various legal 
concerns for protection of certain information and the need for 
disclosure, as well as addressing practical aspects such as 
fees and the time limits for responses to requests by agencies 
for records, and most recently, by establishing the Office of 
Government Information Services, or OGIS.
    With funding received for the first time this fiscal year, 
the National Archives and Records Administration acted quickly 
early in the year to get the office started. Funding is also 
contained in the fiscal year 2010 President's budget.
    I am feeling a little lonely right now. I arrived at the 
Archives a few weeks ago, and I have been interviewing 
vigorously to hire five other staff members. But soon we will 
be a dedicated team building a straightforward and simple 
interface between the public and the executive branch agencies, 
offering alternative dispute resolution through mediation, and 
helping to make the FOIA work better for all involved in the 
process.
    How will we accomplish this? Our mission is twofold. One 
part involves review of agency compliance and performance with 
the FOIA. We will, of course, work closely with the Department 
of Justice, which has a major and well-established role in this 
regard, and with the chief FOIA officers at the agencies. One 
immediate and feasible task is to take advantage of available 
technology to view and assess the existing agency annual FOIA 
reports, similar to what is being done to assess Federal 
agencies' information technology initiatives through the IT 
Dashboard and data.gov.
    A second part of the mission is to offer mediation services 
to resolve disputes between persons making FOIA requests and 
agencies who receive them as a non-exclusive and non-binding 
alternative to litigation. We will pursue several routes:
    We will use existing Federal mediation resources to help us 
provide this service, something that has not been done before 
under FOIA except on an ad hoc basis in litigation as ordered 
by the courts.
    We will work with existing agency FOIA Public Liaisons in 
our review and in developing our mediation capacities.
    We will create an online dispute resolution system, called 
ODR, which is a relatively new approach to conflict resolution 
and which holds great potential to efficiently process and 
prioritize a high volume of cases.
    Many people, and this Committee, including this morning, 
have been referring to the new office as the ``FOIA 
Ombudsman.'' We view our role in that regard as mediator--
assuming, of course, that a FOIA requester has not already 
decided to go to court--and as a source of information, which 
we will provide in person as well as through many resources on 
the Web. Many agencies as well as nongovernmental organizations 
offer useful guides, templates, and good practices on FOIA, and 
we will promote and take advantage of these existing resources.
    Public understanding of how Government records are 
organized and maintained is not strong, nor should it be 
required to submit a FOIA request. But that lack of 
understanding can result in requests that are overly broad or 
which lack the specificity to allow the agency to readily 
search for the records. Similarly, the volume of requests--the 
Government receives over 600,000 FOIA requests per year--the 
sensitivity of the records, and the need to consult with other 
affected agencies all significantly impact the ability of 
agency FOIA officers to respond in a timely manner. You know 
this well. The combination of these pressures can result in 
misunderstandings. Clearing up those misunderstandings and 
seeking solutions in more complicated cases, short of 
litigation, would save time and money for agencies and the 
public alike, as well as bolster confidence in the openness of 
Government.
    In just a short time, I have received helpful advice and 
support from this Committee, the White House Open Government 
Initiative and the Chief Technology Officer, the Department of 
Justice, the National Mediation Board, innovators in the 
private sector, State Ombudsman offices, and members of the 
FOIA requester community. With all of these stakeholders 
assisting in the new office's outreach, we will be able to 
realize the vision of this Committee to achieve the timely and 
fair resolution of America's FOIA requests.
    Thank you, Mr. Chairman, for the opportunity to testify. I 
would be happy to answer any questions.
    [The prepared statement of Ms. Nisbet appears as a 
submission for the record.]
    Chairman Leahy. Thank you for being here, and I am going 
to--I have a number of questions I want to ask. I am going to 
turn it over for a few minutes to Senator Whitehouse while I 
respond to another call from another branch of our Government, 
and then I will come back here.
    I was surprised. You know, I was very pleased in March when 
the Attorney General issued new FOIA guidance that we restore 
the presumption of openness in our Government, and I told the 
Attorney General that. Now, what are some of the specific steps 
that we are taking? For example, I would ask how many times has 
the Department released additional information in a pending 
FOIA case since the new guidelines went into effort.
    Mr. Perrelli. I do not think I have precise numbers, but I 
will say that we have taken a number of steps. Within a few 
days after the guidelines were released, we began training 
other agencies as well as Department of Justice personnel on 
the new guidelines. We have held large conferences to train and 
to begin the process, again, as Senator Cornyn said, of a 
cultural change. And the way we put it to our own personnel, as 
well as to agencies, is that their focus should be not on 
identifying the reason why something could not be disclosed, 
not on identifying a reason why something could be withheld, 
but on identifying those records that could be disclosed to the 
public. That has been a major cultural change.
    I think we have seen a number of examples within the 
Department of Justice and outside the Department of records 
released, and we have begun a long-term process of releasing 
OLC opinions. Our Executive Office of Immigration Reserve has 
now released the bench book, the reference book that is sitting 
on every immigration judge's desk.
    Chairman Leahy. But you have a--and you know that all the 
other departments are going to look and say, well, what is the 
Justice Department doing, because they are sending out these 
guidelines. And you have a number of pending FOIA cases 
currently in the Department of Justice where people have not 
been able to get their FOIA requests answered.
    What are you doing on those? Is it case by case? Is it 
blanket? What do you do so that people are not hit with ``Do as 
I say, not as I do'' ?
    Mr. Perrelli. Certainly, that is true, and we want to make 
certain that in those cases the Attorney General's guidelines 
are being applied. So we are--working with the litigating 
lawyers in those cases as well as reaching out to the agencies. 
And in a significant number of cases, I think we have been able 
to do some reprocessing and to release additional records.
    I know the head of the Civil Division has designated a 
senior official there who is reviewing all of the cases, and 
they have many of the high-profile FOIA cases. They are going 
one by one through those cases and identifying areas where 
additional records can be released.
    I myself have met with the civil chiefs of the U.S. 
Attorneys' Offices to emphasize the need to do that in their 
cases as they go forward. And I know our Office of Information 
Policy has reached out both to the agencies as well as to 
litigating lawyers to do exactly that.
    So I think the agencies are seeing that we at the Justice 
Department are implementing it and are ensuring that they are 
doing it in cases where that is appropriate.
    Chairman Leahy. Could you have somebody let me know how 
many cases are pending?
    Mr. Perrelli. Certainly, we can get you those numbers.
    Chairman Leahy. Thank you. And how many agencies currently 
have chief FOIA officers and FOIA public liaisons in place?
    Mr. Perrelli. I think 92 of 95 of the agencies have chief 
FOIA officers that have been designated, and we have been in 
contact with the three that do not. Those three have interim 
individuals who have been characterized as ``points of 
contact,'' and we have told them they need to actually 
designate individuals.
    Chairman Leahy. What about posting information online? Are 
they doing that? And is that cutting back on the FOIA backlogs?
    Mr. Perrelli. I think it is too early to tell, but we 
certainly are encouraging agencies to do exactly that because 
we think that will have an impact on backlogs. And we are 
directing agencies to identify records that they should 
regularly be able to release in the hopes that people will be 
able to find the records that they are looking for and not need 
to file a FOIA request or maybe a more limited one.
    Chairman Leahy. We find that--some depending upon who can 
lobby the most, trying to slip different legislative exemptions 
in. I mentioned one that we were able to keep out, working with 
the Intelligence Committee. If they all come before this 
Committee, there are going to be very few exemptions made. We 
all understand the need on security. You do not file a FOIA to 
find out who is acting at this moment in troubled parts of the 
world with our CIA, but we have all seen some of these in the 
past: ``Well, we cannot tell you that because it is highly 
classified.'' And you have something where it is all blanked 
out. You may have seen the same thing, all of it, in the 
newspapers weeks before. I once told the Director of the CIA, 
William Casey, when he came up about the third time in 2 weeks 
to the Congress to say, ``I know I was supposed to have told 
you about'' whatever the issue was, ``and now that it has been 
in the press, I want to tell you more about it.'' And I told 
him, ``Send this to the New York Times marked Top Secret.'' We 
get three advantages. We get the information we want sooner 
than he would ever give it to us. Second, we got it in greater 
and more accurate detail. And, third, we got that wonderful 
crossword puzzle.
    [Laughter.]
    Chairman Leahy. He was not as amused as the audience here 
was. But I only let people know about these statutory 
exemptions on the one hand. Also, on the other hand, how do we 
keep from adding more of them in there?
    Mr. Perrelli. Right. This is an issue of real concern to us 
because when there are efforts to put an exemption in statute 
in an unclear way, it is difficult for the public, for 
legislators, and, frankly, for agencies as they try to 
implement FOIA. So we have a real interest in making sure that 
it is transparent that an exemption is being proposed and being 
discussed so a decision can be made on that.
    In terms of exemptions already in place, we require all the 
agencies to identify when they are relying on a particular 
statutory exemption. We actually publish on our website which 
statutes are being used as exemptions, so that can be 
transparent for all to see, and in their annual reports each 
agency has to identify if it is relying on a particular statute 
as a basis for an Exemption 3 withholding.
    Chairman Leahy. I have exceeded my time. I am going to turn 
it over to Senator Klobuchar, but then I am going to come back. 
I want to talk about state secrets. Thank you.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
you, both of you, for being here.
    Mr. Perrelli, I wanted to talk about the President's FOIA 
memorandum from January 21st. Could you elaborate a little more 
about what it means to require agencies to have a presumption 
of openness and to take affirmative steps to make information 
public? How much of that is already required by FOIA? And how 
much of the President's memo goes above and beyond the law?
    Mr. Perrelli. Well, the message that the Department of 
Justice used to send was that if you can find a basis for 
withholding information, we will support you and defend that.
    The President's memorandum changes this really from a 
presumption that if you can find a basis it will be withheld to 
a presumption that information will be disclosed unless a 
particular harm can be identified. And that is, as I said, a 
significant cultural shift that makes an enormous difference. 
It also encourages agencies to go beyond that, regardless of 
whether they get a FOIA request, and identify information that 
they routinely create and maintain that can be made public. And 
we have seen many agencies go out of their way with the new 
presumption to identify those records and put them up on the 
Web or disseminate them in some other fashion. And like I said, 
we work with agencies every day to help them think through this 
and identify those kinds of records.
    Senator Klobuchar. Now, I know from having managed 400 
employees when I was county attorney that culture shifts are 
not always that easy. I remember I once moved furniture around 
in our lobby, and within 20 minutes there were 18 negative 
comments about the new arrangement.
    And so I am just wondering how it has been working with the 
agencies. What has been the most challenging thing as they have 
gone to implement these new changes?
    Mr. Perrelli. I think the key to all of this is training, 
training, training, as well as getting broad-based support 
within each agency. In Attorney General Holder's guidance to 
agencies, one of the things he emphasized was that FOIA is 
everyone's responsibility--an effort really to empower the 
chief FOIA officers of each of the agencies to identify issues 
and problems and raise resource issues or concerns about not 
having enough people, with backlogs, so that we can actually do 
this more effectively and efficiently.
    As Ms. Nisbet mentioned, there are obviously an enormous 
number of FOIAs submitted to the Government each year, and 
trying to keep up with that flow remains a significant 
challenge.
    Senator Klobuchar. How about the issue of the--you drafted 
a new policy regarding partial disclosures, which seems to make 
sense to me, that even if a full disclosure of a document is 
not possible, you could do a partial disclosure. Have there 
been challenges with that?
    Mr. Perrelli. I wouldn't say there have been challenges 
with that, but I think we are still working to make sure that 
as individuals are looking at particular documents--and, again, 
this is all about training--that their focus should be on, 
``are there pieces of this document that can be released, even 
if there are pieces in this record that may not be able to be 
released? '' And we very much encourage agencies to go through 
that process on a document-by-document basis. I think we are 
starting to see the results of that training and trying to 
inculcate these ideas, and I think we are making progress every 
day.
    Senator Klobuchar. And one of the provisions of the OPEN 
Government Act was a requirement that agencies assign tracking 
numbers to FOIA requests if they would take longer than 10 days 
to fulfill, and I am sure that got at some of the backlogs and 
what was going on and established ways for requesters to track 
the status of their request. Has this been fully implemented 
yet?
    Mr. Perrelli. I think this has been broadly implemented. I 
am hesitant to say ``fully implemented.'' But I think it has 
been an important development just in the customer service 
aspect of the FOIA, so that people can track these things. The 
other piece of this puzzle in working with agencies, is that we 
have seen a wide disparity in technological ability with 
different agencies. We are working with them, across agencies, 
on best practices to try to encourage more of them to move to 
electronic processing, which I think over time is going to be 
extraordinarily helpful.
    Senator Klobuchar. Yes, I would think you would want it 
more standardized. It would be easier to do that.
    Mr. Perrelli. We continue to work on it.
    Senator Klobuchar. Ms. Nisbet, I know you are brand new at 
your job, but do you want to add anything to this, especially 
about the standardization, trying to get things working across 
agencies?
    Ms. Nisbet. Well, certainly I think this administration is 
very much dedicated to looking for innovative ways to use 
technology. Even older ways of using technology would be 
welcomed at some of the agencies.
    [Laughter.]
    Senator Klobuchar. As opposed to no way of using----
    Ms. Nisbet. Yes, as opposed to no way. I think you see the 
whole range, and it is very much a challenge. It is technology, 
it is resources to support that technology.
    Our office will certainly be looking for ways to use 
technology to make our resources known and our presence known, 
and working with the FOIA officers to find the best practices, 
where it is working, good examples, and sharing those resources 
so that different agencies are not having to start from scratch 
to develop their own but, rather, can borrow.
    Senator Klobuchar. Thank you, and I do appreciate your 
efforts here. My State has always had a very broad FOIA law and 
has allowed a lot of information to be shared. And I was 
actually quite surprised when I came to Washington and some of 
the--for instance, in the climate change area, when we were 
trying to get some of the findings with the previous 
administration, and the Senators had to view them in a little 
room by ourselves and could not write anything down. I was, 
like, ``Where is this coming from? ''
    So I am very glad that you have embarked on this new 
policy. Thank you very much.
    Ms. Nisbet. Thank you.
    Chairman Leahy. Thank you, Senator Klobuchar.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    Ms. Nisbet, I understand there are FOIA requests that have 
been outstanding for 17 years, and that Government agencies 
have requests that have been outstanding for 10 to 15 years. 
How are those going?
    [Laughter.]
    Senator Franken. And what will your office do about those?
    Ms. Nisbet. I am afraid that what you have heard is not a 
rumor, from what I understand. What we will be doing 
immediately, as soon as we can really have somebody to answer 
the phone and deal with those kinds of issues, is use our 
efforts to mediate where there are stubborn cases. We will be 
working, of course, with agencies and with FOIA requesters to 
identify particularly difficult problems and try and get those 
backlogs over with.
    Senator Franken. Well, what is the role--how are you going 
to mediate these things? Can you be more specific about that? 
Let us say when there is not just a misunderstanding but the 
person making the request and the person denying the request 
are just at loggerheads, how do you do that? How does that 
work? What is the role of the mediator?
    Ms. Nisbet. The role of a mediator--and mediators are used 
in all kinds of fields, not only domestic disputes and 
financial disputes, but have been used in FOIA cases as well. 
The technique is really a matter of having a trained mediator 
sit down with the parties separately and together to see where 
the issues are and start trying to find ways to find a common 
ground and a solution.
    It is often very difficult. I will give you an example of 
one case in which I myself participated when I was in the 
counsel's office of the National Archives in the 1990's. One of 
the very, very stubborn cases in litigation that I am sure that 
you have heard of, that is pretty well known, was litigation 
over the White House tapes of former President Nixon, a very 
intractable case that went on for many, many years. But with 
the help of a mediator, the parties--the Justice Department, 
the National Archives, the custodian of the records, and the 
estate of President Nixon--were able to work through some of 
those very difficult issues and eventually come up with a plan 
for getting much more information released to the public. And 
that was a very difficult case, but mediation was very much the 
key there.
    Senator Franken. Just curiously, what was so difficult 
about that? Why couldn't the President tape himself? What was 
so difficult about the mediation exactly? In other words, it 
seems to me that would be a pretty clear case where that would 
be a public record?
    Ms. Nisbet. Well, the Nixon White House tapes were quite 
unique in that--I would love to invite you over to the National 
Archives, and we could perhaps talk a little bit about it and 
maybe show you when you can listen to some of those records. 
But, you know, that was the situation in which Congress acted 
for the first time to take records of a President and make them 
the Government's records and not the personal records of the 
President.
    So it led to quite a bit of litigation, going to the 
Supreme Court over the ownership, over the legality, the 
constitutionality of the law that was passed to take the tapes, 
and then eventually over the release of them. And President 
Nixon continued to retain an interest under law in the release 
of the tapes. So everything had to be negotiated. A very 
interesting case, but we are still seeing today releases of 
those records for the first time.
    Senator Franken. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Franken.
    One thing I did not have a chance to ask before, Mr. 
Perrelli, was on the state secrets privilege. Last week, we 
learned the administration is going to start a new policy on 
state secrets beginning I guess tomorrow. The Attorney 
General's new policy has several parts actually taken from the 
State Secrets Protection Act, which I have introduced along 
with several members of this Committee. I think that does show 
new openness, but I want to make sure that the decision whether 
to invoke state secrets or not has real judicial review. And if 
you do not have legislation to make it permanent, the next 
administration could easily change it.
    We are all familiar with the use of state secrets, but as I 
review some of the cases we have seen around this country, I 
think it has been overused. It is one thing to use the question 
of state secrets if indeed the security of the country is at 
stake. It is another thing to use it when it is ``let us cover 
up our mistakes'' kind of usage.
    Are the courts going to have the ability to review the 
evidence the Government uses if it wants to justify the 
privilege of state secrets?
    Mr. Perrelli. Well, Mr. Chairman, the policy that the 
Attorney General is implementing as of tomorrow is an important 
step here in protecting classified information, as well as 
ensuring that it only is invoked in a manner that we think is 
legally defensible.
    As you indicated, the plan has a number of steps. 
Invocation of the privilege will be reviewed by a Department 
committee. The decision will be made by the Attorney General. 
It will not be asserted by the United States in a situation 
where you are trying to cover up embarrassment or a mistake. 
And we anticipate that the courts will review those 
determinations as they do today.
    Chairman Leahy. Well, because I might say if it is used all 
the time, then it might as well as be used none of the time, 
because it is going to lose any credibility. I do want the 
ability of courts to review, and that is why I will keep 
pushing on the State Secrets Act that we have pending right now 
before the Committee, not just for this administration but for 
future administrations to have some guidelines.
    I might say, Ms. Nisbet, you know, Senator Cornyn and I 
have worked very hard to have your office. I hope you will keep 
us posted here on those things that are going right, but also 
let us know the things that are going wrong. We want to know 
what is working in the office, but also if you find things that 
you do not think are working or that the law creates problems 
for you, let us know. We do not kill the messenger up here--
actually, we do now and then, but----
    [Laughter.]
    Ms. Nisbet. You will make an exception in my case.
    Chairman Leahy. We kill reluctant messengers. We do not do 
that to people who are willing to tell us.
    We will take a 3-minute recess while we change around the 
table, and then we will go to the next panel.
    Ms. Nisbet. Thank you.
    Mr. Perrelli. Thank you, Mr. Chairman.
    [Recess 10:52 a.m. to 10:56 a.m.]
    Chairman Leahy. If we could reconvene, please. We have two 
witnesses here: Tom Curley, who was named the President and 
Chief Executive Officer of the Associated Press in June of 
2003. That is impossible. That is 6 years. Since assuming the 
position, Mr. Curley has worked to deepen AP's longstanding 
commitment to the people's right to know. He is one of the 
country's most outspoken advocates for open government and has 
testified before this Committee. He holds a political science 
degree from Philadelphia's La Salle University and a master's 
degree in business administration from Rochester Institute of 
Technology.
    And the other witness will be Meredith Fuchs. She is 
General Counsel for the National Security Archive at George 
Washington University. In that capacity, she oversees Freedom 
of Information Act and anti-secrecy litigation, advocates for 
open Government, lectures on open Government, a former law 
partner in the Washington, D.C., office of Wiley Rein LLP; a 
bachelor's degree from the London School of Economics in 
political science; received her J.D., cum laude from the New 
York University Law School.
    Mr. Curley, we will begin with you, and then go right to 
Ms. Fuchs.

STATEMENT OF TOM CURLEY, PRESIDENT AND CHIEF EXECUTIVE OFFICER, 
 THE ASSOCIATED PRESS, REPRESENTING THE SUNSHINE IN GOVERNMENT 
                 INITIATIVE, NEW YORK, NEW YORK

    Mr. Curley. Mr. Chairman, thank you for this invitation and 
your continuing commitment to safeguarding our liberties 
through open Government.
    Mr. Chairman, your work is not done. The secrecy reflex at 
too many agencies remains firmly in place. FOIA still contains 
relatively weak penalties for those who do not meet their 
disclosure obligations.
    I would like to make four points.
    First, we in the news media still find Federal agencies 
unresponsive to the declarations from the White House that 
Government must become more open. We truly appreciate the 
change in policy direction, but the change has not reached the 
street. A stronger FOIA is still the public's best defense 
against harmful Government secrecy. Unfortunately, the effort 
to conceal is greatest where public interest is highest.
    Second, the Office of Government Information Services 
eventually can be extremely valuable to FOIA requesters as an 
adviser and sometimes as a mediator of disputes. But OGIS is 
tackling enormous challenges with very modest resources, and we 
urge the Committee to continue its close monitoring and support 
of the new office as it finds its footing.
    Third, FOIA's privacy exemption may need the Committee's 
attention. Courts in some important cases appear to be ignoring 
the intent of Congress when a past FOIA that is public records 
containing personal information qualify for the exemption only 
when that information is highly personal, private, and 
sensitive. Some judges are satisfied with a mere showing that a 
person is mentioned by name in a document. Then they compound 
the error by refusing to recognize any public interest in 
disclosure unless the requester knows in advance that they are 
likely to contain evidence of Government misconduct. That is 
not the proper balancing of interest that FOIA is supposed to 
require. It is wrong. It is causing problems. And we think it 
may take changes in the language of FOIA Section 6(b) or b(6) 
and b(7) to fix it.
    The fourth and final point is that the so-called b(3) 
amendments to the legislation are severely undermining FOIA's 
ability to preserve the public's access to Government 
activities and information. As you know, b(3)s are provisions 
embedded in other laws that put certain very specific kinds of 
information beyond FOIA's reach. They often are inserted with 
no discussion, and they now constitute a very large black hole 
in our open public records law.
    The Sunshine in Government Initiative found about 250 b(3)s 
on the books, and about 140 of those show up in agency denial 
letters every year. In many cases, these special exemptions 
protect information already covered under one or more of the 
other exemptions in FOIA Section b. In other cases, they are 
creating whole new categories of information not subject to 
disclosure.
    But the real problem with these exemptions is that writing 
them into statute forecloses any chance of an impartial 
determination that a valid reason applies to all the 
information that has been effectively roped off. Whether or not 
one of the general FOIA exemptions should cover a particular 
information request is subject to court review. But a statutory 
exemption for very specific information is not.
    The FAA, for example, has a b(3) exemption that lets it 
withhold information voluntarily submitted to aviation 
regulators regarding the safety and security of air travel. You 
may remember that this is the exemption the FAA was planning to 
use as the basis for holding information the agency collected 
about airports where birds in flight paths are crippling or 
even bringing down airliners.
    Also secret are the identities of watermelon growers, the 
identities of people who handle honey, and the ingredients in 
cigarettes. B(3) exemptions hide the private sector advice that 
Government trade representatives and Congressional committees 
use to shape trade policy and also the studies that chemical 
plants conduct to determine the impact of any worst-case 
accident on neighboring communities and the environment.
    There may be valid arguments for putting a secrecy label on 
some of this information, but the real concern is that whatever 
argument exists have not been challenged or even discussed in 
any public forum, and the b(3) exemptions mean a disappointed 
FOIA requester will find it nearly impossible to challenge them 
in the courts.
    Nobody knows exactly how many of these exemptions there 
are, but AP reporters encounter them on a routine basis. We 
regarded the OPEN FOIA Act, which you, Chairman Leahy, and 
Senator Cornyn introduced earlier this year, as a much needed 
first step toward reining in this alarming trend. Your proposed 
statute would make it possible for anyone who is watching for 
b(3) exemptions in proposed legislation to spot them easily.
    I hope you can keep the OPEN FOIA Act on track toward 
passage, and I hope Congress will then build on it with some 
additional steps such as automatic sunsetting of b(3)s and 
special scrutiny of b(3) exemptions, including a White House-
OMB review process before these exemptions can be submitted by 
Federal agencies.
    Chairman Leahy, thank you very much.
    [The prepared statement of Mr. Curley appears as a 
submission for the record.]
    Chairman Leahy. Thank you. I am going to get back to 
questions in a moment, but you are not willing to concede that 
it is vital for national security to keep the identity of 
watermelon growers secret? I mean, what kind of patriot are 
you?
    [Laughter.]
    Mr. Curley. Well, it did make for a great story.
    Chairman Leahy. I do remember very well the flights and 
birds. I mean, I just went right through the ceiling. As 
someone who flies virtually every week--well, anyway, we will 
get back to that in a moment.
    I should say, for anybody who wants to yank that part of 
the record out of context, I was joking on the question of your 
patriotism. You almost have to do that these days.
    Ms. Fuchs, go ahead, please.

  STATEMENT OF MEREDITH FUCHS, GENERAL COUNSEL, THE NATIONAL 
               SECURITY ARCHIVE, WASHINGTON, D.C.

    Ms. Fuchs. Thank you, Mr. Chairman. I am delighted to talk 
to you today about the Freedom of Information Act.
    The outlook is quite different today than it was in March 
2007, when I last appeared before this Committee. Thanks to the 
efforts of this Committee, and particularly your own efforts 
and Senator Cornyn's efforts, the OPEN Government Act of 2007 
was enacted into law. Thank you for that and, in addition, the 
sustained interest this Committee has shown in the 
administration of FOIA has had an impact across Government, so 
thank you again for that. And I hope you continue regular 
oversight in this area.
    As you know, the OPEN Government Act of 2007 amended FOIA 
in numerous ways. In my written testimony, I have included some 
details about specific provisions, but today I want to talk 
about two particular issues under the OPEN Government Act. One 
is we are delighted with the appointment of Ms. Nisbet as the 
first Director of the Office of Government Information 
Services. The National Archive and Records Administration was 
very open during the process of developing startup plans for 
OGIS, and Ms. Nisbet has so far shown the same openness to hear 
the input of the requester community as she sets up her office. 
We urge this Committee to continue to use its efforts to ensure 
that OGIS is on firm financial footing and that the Federal 
Government FOIA community participates in OGIS' mediation 
activities in good faith.
    Second, with respect to the OPEN Government Act, I want to 
touch on the state of FOIA backlogs. I can see that Senator 
Franken at least read my testimony, which pointed out that as 
of the end of fiscal year 2008 there were still quite old 
backlogs in FOIA requests. The OPEN Government Act----
    Chairman Leahy. I would note that Senator Franken is one of 
the hardest-working Senators I have met in a long, long time.
    Ms. Fuchs. That is great. Well, I think that the reason he 
asked that question is because it is quite shocking to imagine 
that there are still FOIA requests that are 17 years old.
    The OPEN Government Act has changed the reporting 
requirements under the FOIA, and the reason it was necessary 
for it to do that was because the prior annual agency FOIA 
reports did not provide an accurate picture of the State of 
FOIA. Under prior law, agencies only collected what information 
the law required. They did not design systems to help them with 
tracking or managing their FOIA requests. In fact, some 
agencies did not even have any tracking system, which is a 
reason that you all added tracking requirements to the OPEN 
Government Act.
    The new law should change things. Unfortunately, because 
many agencies have such antiquated systems, I do not feel that 
the annual reports filed for fiscal year 2008 are fully 
illustrative of the State of FOIA. Sadly, they did show that 
agencies have requests as old as 17 years, 15 years, 10 years, 
and the like. We are going to look hard at the annual reports 
that will be developed in the next couple of months for fiscal 
year 2009, and I urge this Committee to do so as well.
    Then I would like to turn a bit to talk about the Obama 
administration. As you know, President Obama on his first full 
day in office issued a series of memoranda and executive orders 
on open Government issues. One of these was a FOIA memorandum. 
I reread that memo this morning, and I am struck by the vision 
of openness and accountability it espouses. It says, ``All 
agencies should adopt a presumption in favor of disclosure in 
order to renew their commitment to the principles embodied in 
FOIA and to usher in a new era of open Government.'' Soon after 
this memorandum, as you know, Mr. Holder issued a FOIA 
memorandum, and the Department of Justice also soon issued 
detailed guidelines for agencies.
    So in preparation for today, I pondered whether we have 
entered a new era of open Government which the President asked 
for. Most of the people I have spoken to are happy with the 
overarching principles that this administration has 
articulated, but they worry about the implementation.
    One area in particular that people are concerned about is 
whether the new standards have been applied to FOIA cases 
currently in litigation at the time the policies were issued.
    I myself have a case in which we asked the Department of 
Justice if it wished to re-review certain records, and the 
Department declined. I heard similar stories from other 
litigators, and I have seen court records saying that same 
thing.
    But I also know of several cases where the Department of 
Justice has released additional records. Some of these were 
very high profile cases, and there were many factors other than 
the FOIA policies that were influential, such as the 
interrogation memoranda and the IG report from the CIA on 
interrogation. But there are other less well known cases. And 
we have also seen that in response to regular FOIA requests, 
agencies are processing more.
    Mr. Perrelli suggested that the new standards have been 
applied in all instances, and with respect to that, I suggest 
this Committee ask the Department to report on the results of 
its litigation review and to report whether it has refused to 
defend FOIA cases under the new standard.
    I would finally like to quickly address two additional 
issues about implementation. I have a list of recommendations 
in my testimony that I hope will be considered, but I would 
like to----
    Chairman Leahy. All of which will be part of the record.
    Ms. Fuchs. Thank you. The first is that we hope that the 
Office of Management and Budget and the Department of Justice 
will renew their Committee to E-FOIA implementation and help us 
move from an affirmative disclosure model where FOIA requests 
are limited to the most difficult cases.
    Second, we would like to see the administration agree to 
treat the White House Office of Administration as an agency for 
the purposes of the FOIA. We have been involved in litigation 
about preservation of White House e-mails, and the Office of 
Administration is the central office responsible for that.
    I do not have much time to talk about future threats to 
FOIA. I will note that yesterday a copy of a draft executive 
order on classification was leaked, and it has some very good 
innovations; it has some backward steps in it as well. If this 
hearing was broader than FOIA, I would have plenty to say about 
that. But the question is: Have we entered a new era of 
Government?
    I guess my conclusion is that the door is open and we can 
see the light, and I am hopeful that the Obama administration 
will walk right out into the sunshine and fully implement the 
principles that the President articulated on January 21st.
    Thank you.
    [The prepared statement of Ms. Fuchs appears as a 
submission for the record.]
    Chairman Leahy. Do you think it is too early to tell 
whether the guidelines are going to work?
    Ms. Fuchs. I think that the guidelines are having an 
impact, but I think it is too early to tell because, you know, 
the agencies have not fully implemented them, and we do not 
know how a range of FOIA requests are going to be handled. 
There have been high-profile releases, but there have been 
high-profile withholdings as well.
    Chairman Leahy. And that long backlog that Senator Franken 
referred to is still there.
    Ms. Fuchs. I believe it is still there.
    Chairman Leahy. Some of it will just disappear because the 
requesters will give up, which is a very--that bothers me. And 
tell me if I am correct in being worried about that, that if 
that becomes the norm, does that not encourage departments to 
keep things hidden?
    Ms. Fuchs. I think you are exactly right, Mr. Leahy. Some 
of the annual reports from agencies demonstrate that requesters 
have simply walked away because they actually--some of them 
report numbers of cases closed because the requester lost 
interest.
    Hopefully, if agencies could get their backlog to something 
more reasonable, people would not be walking away.
    Chairman Leahy. I want to follow up on that with Mr. 
Curley, because we have the ombudsman provision in the OPEN 
Government Act that I discussed with Director Nisbet. Now, in 
2005, a member of the Sunshine in Government Initiative 
testified before the Committee. I want to make sure I have got 
this right. He said, ``Nearly one-third of FOIA requests were 
denied in 2004.'' And so the only thing they could do is pursue 
litigation, which could not only take a long, long time, but it 
would be very costly.
    Now, if your association or any major news-gathering 
organization had one specific thing of some significance, you 
might be willing to undertake that litigation. But I am 
thinking that on the routine things, the person who does not 
have any resources should not have to have costly litigation. 
The OPEN Government Act establishes an agency ombudsman. Do you 
think that the FOIA ombudsman as an alternative to litigation 
might help?
    Mr. Curley. Senator, absolutely. Obviously, we are in the 
opening weeks, but I think the provision was both prescient and 
in time it may turn out to be precious--prescient because the 
industry is under such dire financial conditions right now that 
having a non-legal, if you will, a non-court approach might be 
very helpful in getting some expedited attention to these 
requests.
    In time, that may prove to be a very good way, but there 
are a lot of priorities that have to be set, a lot of details 
that have to be gone through. And, again, I come back to the 
agencies that are most in the public interest in terms of 
Defense, Homeland Security, Justice, Treasury are most 
unwilling to give up their secrets right now. So it is going to 
take a while to sort through these procedures.
    Chairman Leahy. And in this regard, I have a philosophical 
concern. I begin with the idea that we Americans have a right 
to know what our Government is doing. More importantly, we have 
a right to know when our Government screws up and makes 
mistakes.
    What I have seen especially since 9/11, it is a lot easier 
to say I will just close the door on that, that is secret, we 
cannot know about it. We have seen in the Archives where 
material that has been there, open, available to anybody for 
years, is suddenly taken off and is not available because it is 
considered top secret. We have seen things that have been on 
Government websites for months, maybe a year, and taken off.
    Now, part of this is an unnecessary paranoia. Some part of 
it is in some areas perhaps because there is a security 
concern, and I think that we all respect that. But part of it, 
I think, is a very easy way of saying I do not want you poking 
around whether I screwed up. It is that last part that really 
bothers me.
    Now, as you mentioned, tell me a little a little bit about 
the watermelon growers and the beekeepers. I mean, this is 
somewhat absurd, and I am sure that is why you mentioned it.
    Mr. Curley. It is really just things that have been slipped 
into legislation over the years. Deals are made in provisions 
in laws at midnight or 1 a.m. and it gets in. And right now, as 
you know, there is no provision to call and attempt to put 
something in a b(3) provision into the record or have any 
discussion about it. So routinely these things are being done 
now, and whole areas of information are being kept from the 
people.
    We also find the upstream requests under b(5). Agencies are 
calling a lot of the discussions pre-decisional so they do not 
have to release it there.
    So there are a number of areas here where people are just 
holding back. It should be fun to know why we cannot find out 
about the honey growers or the watermelon people, and it has 
been impossible to figure it out. But this is just an absurd 
example of something that is happening routinely, at least we 
figure out, about 140 times a year in Washington.
    Chairman Leahy. I have a very real concern about that. I 
make the argument that this Committee has jurisdiction over 
that and we should be discussing it. I mentioned when they 
tried to put something into the intelligence authorization, we 
were able to pull back on it. But we have a President who seems 
deeply committed to FOIA. I know my discussions with him when 
he was in the Senate and my discussions with him since he 
became President tell me that.
    My touchstone still is how do we keep this going, not only 
for this administration but the next administration. I mean, 
there will be other people in your chair, both of you, 
testifying. There will be somebody else here as Chairman. I do 
not want the next person to have a less commitment to it. How 
do we make sure that we have got it right in the law? How do we 
keep the pressure up?
    Mr. Curley. Well, I think your efforts here have been 
extraordinary, and I think we are going to suggest that we do 
need further amendments in the law to have these things 
institutionalized. Certainly, directionally the music is sweet 
that we are hearing, but turning the ship of state in a 
bureaucracy as vast as this one, as you well know, is not going 
to happen in 9 months--and maybe even 9 years. And so how does 
that happen?
    From a management standpoint, there are some things that 
can be done, and we have heard the Associate Attorney General 
tell us about those. My colleague on the panel, Meredith, has 
some very good suggestions as well. But ultimately a tougher 
law closing some of the loopholes will be required.
    Chairman Leahy. I have always found in Government that 
inertia is a lot easier than initiative, and we will work for 
initiative.
    Do you want to add anything further to this, Ms. Fuchs?
    Ms. Fuchs. Well, I would simply add that, you know, the 
OPEN Government Act was enacted into law in 2007, and very few 
agencies have taken its provisions and implemented regulations 
that incorporate those provisions. And I think that that is one 
thing that will help solidify some of the gains of the law, 
and, you know, ideally they would also in the regulations add 
the presumption of disclosure that has been articulated by the 
President.
    But other than that, I would agree with Mr. Curley. 
Constant oversight by this Committee, new laws or closing 
loopholes in the laws, those will be important. And I think it 
is great that this administration has such a different vision 
because if the next administration, whatever it will be and 
whenever it will be, reverses, again you will see a reaction 
from the open Government community.
    Chairman Leahy. Thank you very much.
    Mr. Curley. Thank you.
    Ms. Fuchs. Thank you.
    Chairman Leahy. We will stand in recess.
    [Whereupon, at 11:19 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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